SAN FRANCISCO — As lawyers last year prepared for the federal case that would challenge California’s ban on gay marriage, Chief U.S. District Judge Vaughn R. Walker told both sides that he saw his role as a finder of facts who could produce a record that would inform higher courts grappling with constitutional matters.
The ruling he released Wed nesday declaring the ban unconstitutional reflected that inclination. While other rulings on gay marriage have emphasized legal theory, Walker’s 136-page decision leaned heavily on findings of fact based on the testimony he heard during a 13-day trial in January.
At least some legal analysts believe that Walker fashioned his order to force judges on the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court to confront the practical reality of gay unions, rather than treating them as a legal abstraction.
Some analysts also said the reliance on the trial testimony might help Walker’s decision survive an appeals court’s scrutiny because appellate judges typically give a trial judge’s factual findings some deference.
Most legal analysts expect the case ultimately will be resolved by the U.S. Supreme Court. Four conservative justices on the Supreme Court are widely believed to be unlikely to support a decision recognizing a constitutional right of gays to marry.
Four others, including newly confirmed Justice Elena Kagan, seem more likely to agree with Walker that the Constitution does not allow states to treat gay couples differently from heterosexual ones, analysts said.
The deciding vote, most analysts agree, likely would belong to Justice Anthony M. Kennedy.
In recent years, Kennedy has been the author of two major decisions striking down laws seen as discriminating against gays.
In 2003, he wrote the opinion invalidating a Texas law that made gay sex acts a crime, and in 2007, he struck down a Colorado ballot initiative that prohibited local governments from passing anti-discrimination ordinances based on sexual orientation.
All but five states ban same- sex marriage, and the San Francisco jurist’s ruling made only an oblique mention that California was part of the national majority on the marriage question, said University of California, Davis law professor Vikram Amar.
By contrast, Kennedy’s previous gay-rights rulings overturned laws that already had become “outliers,” Amar said. Virtually no states still enforced criminal sodomy laws at the time Kennedy invalidated Texas’ statute, for example.
